A question of public interest

A little-noticed vote in Strasbourg on 2 October is in reality a very big deal for whistleblowers, confidential sources and privacy activists.

In the vote, the Parliamentary Assembly of the Council of Europe (PACE) endorsed the ‘Tshwane principles on national security and the right to information’ – a set of recommendations covering, among other things, how to protect whistleblowers and journalists’ confidential sources, and what to do about abusive surveillance.

The decision comes amid continuing fall-out in Europe over the US National Security Agency’s internet surveillance programme, revealed by Edward Snowden, and the heavy prison sentence given to Private Manning, the source of the WikiLeaks release of US diplomatic cables and war logs.

The 50 Tshwane principles, based on international and national law and practice, offer a prism through which to view those cases, as well as grounds to urge European lawmakers not to use the rubric of ‘national security’ as a catch-all to keep information private that could and should be shared with the public.

They were drafted by 22 civil society and academic organisations in consultation with some 500 experts from 70 countries over two years, and completed in Tshwane, South Africa – hence the name.

Advocates for keeping secrets secret, regardless, might have tried to dismiss these experts – who include former attorneys general, military officers, and intelligence professionals – as do-gooders with lofty thoughts and little responsibility or accountability.

Now they cannot. The 318 parliamentarians who endorsed the principles have gone on record recommending the whistleblower, surveillance and access-to-information standards to their constituents – who every few years vote them in or out of office.

Their endorsement calls on all 47 governments to take the principles into account in modernising their legislation and practice.

Here is why that matters.

First, the assembly urged that “a person who discloses wrongdoings in the public interest (whistleblower) should be protected from any type of retaliation, provided he or she acted in good faith and followed applicable procedures”.

That principle makes clear that even public disclosures of classified information should not be punished in certain circumstances.

Second, the assembly stressed that “access to information should be granted even in cases normally covered by a legitimate exception, where public interest in the information in question outweighs the authorities’ interest in keeping it secret”.

That principle is a statement in support of the “public-interest test”. According to a recent survey of 93 access-to-information laws around the world, while 44 include a public-interest test, only six European countries apply the test to all grounds for exception, including national security.

The PACE resolution could change the prevailing view in Europe that information about national security may be kept secret upon a government’s say-so, to a presumption that all information of public interest should be disclosed, in the absence of corroboration that disclosure would cause concrete harm.

Third, the assembly listed categories of information that normally should be found to be of overriding public interest, and thus disclosed to the public, including information that could make an important contribution to public debate.

That represents an important advance because previously whistleblower protections focused on safeguarding the release of information that exposes wrongdoing. Much information of high public interest – including the bulk of Snowden’s disclosures to date – does not technically disclose violations of any law.

Other principles endorsed by PACE include an emphatic statement that “public authorities, internet providers and others [should] abstain from using invasive wiretapping technologies…or from otherwise interfering with the data traffic of internet users”.

And the assembly reaffirmed the right of journalists not to be forced to disclose information that could be used to identify a source. That includes a prohibition on the use of information from surveillance, searches or seizures to identify confidential sources.

The resolution calls on European governments and legislators to take these principles “into account in modernising their legislation and practice”. The continuing public furore over Snowden’s surveillance revelations suggests Europe’s citizens would emphatically agree.

Sandy Coliver, a lawyer at the Open Society Justice Initiative, participated in the development of the Tshwane Principles.

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